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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Tuesday, January 31, 2017

This case involves a horrible rape and murder on Long Island in 1984. The police arrested three men, including one who confessed in detail to the crime and implicated two of his friends. All three men were found guilty. They were exonerated by DNA evidence in 2003. Two of them sued the police for damages after spending 18 years in jail. The jury awarded each of them $18 million, and the Court of Appeals affirms.

The case is Restivo v. Hesseman, decided on January 19. This case raises a plethora of issues, including the admissibility of expert testimony, hearsay and what constitutes proper jury instructions. One reason for the extensive analysis is that the civil case against the police original resulted in a defense verdict, but the district court granted the plaintiffs' motion for a new trial after concluding that she had provided improper jury instructions. But let's focus on two of the issues, both relating to damages.

First, since the plaintiffs were wrongly convicted, under state law, they were provided with $2.2 million each. The New York Court of Claims Act Section 8-b allows for that award even without a showing of wrongdoing by the police. Since Police Officer Volpe was found liable for $36 million on plaintiffs' Section 1983 civil rights claims, he wants that amount reduced by $4.4 million, since plaintiffs had already recovered that amount under state law. The Court of Appeals (Pooler, Parker and Livingston [in dissent on the set-off issue]) rejects that argument, holding that the set-off argument undercuts the policies guiding Section 1983, intended to deter governmental officials from violating constitutional rights.

Volpe also argues that the jury award is too high. We call that a remittitur motion. The standard in determining whether a jury award in federal court is too high is whether it shocks the conscience. This is a lenient standard that gives the jury the benefit of the doubt in sizing up someone's pain and suffering. The Court of Appeals finds the jury award "is in line with other approved awards in wrongful conviction cases," citing precedents from the First Circuit, a district court in California and two appellate division rulings in New York. So this is the first time the Second Circuit has reached this holding. Here is some of the reasoning:

The evidence shows that, as can be expected, plaintiffs suffered grave harm from their 18 years of wrongful incarceration, including adverse psychiatric effects, loss of relationships with family members, and stigma due to the nature of the crimes they were convicted of—and resulting violence against them while incarcerated.

Thursday, January 26, 2017

One of the most awkward phrases in the Title VII lexicon is "similarly situated." That phrase is not as bad as "adverse employment action," but it comes close. Yet, similarly-situated is an important concept that can make or break a lawsuit. It breaks this one.

The case is Perez-Dickson v. Bridgeport Board of Education, a summary order decided on January 24. Plaintiff was a school principal who was disciplined by the School Board. She said it was racial discrimination. The Board said it was her bad behavior, i.e., alleged physical abuse of students.

If you are disciplined at work and believe it was the product of unlawful discrimination, one way to win is by showing that others at work engaged in similar misconduct and were not disciplined. There may be no clearer way to prove unlawful discrimination. This is where the similarly-situated concept kicks in. To prove this unfair treatment, the other employees must have been similarly-situated to you. Having identical titles and job duties with the same supervisors is the best way to show these people were similarly-situated. If the comparators are not right on point, you can still reach a jury on this issue if they are close enough, so long as they are "similarly-situated in all material respects."

Plaintiff cannot prove that here, the Court of Appeals (Raggi, Chin and Lohier) says, because none of the comparators held the title of school principal, and most were only accused of a single act of misconduct, unlike the plaintiff, whose actions were preserved on videotape. My guess is that if plaintiff was the principal, she was also held to a higher standard than any of her comparators.

Remember when we were kids? We got caught doing something wrong and said that everyone else was doing it. Why are you picking on me? We do it as adults also. You can get pulled over for speeding and while the officer writes you a ticket, others whiz by at 100 miles an hour. Our parents and teachers did not put up with that crap. But that argument works in discrimination cases. The law is a wonderful thing.

Wednesday, January 25, 2017

The plaintiff was a firefighter who was constructively terminated from his position. He says he was let go because he spoke on matters of public concern. The fire department said he was let go for misconduct. The district court dismissed the case, but the Court of Appeals brings it back.

The case is Crown v. Danby Fire District, a summary order issued on January 24. This case raises several issues that Section 1983 litigators are familiar with. For those of you who don't handle these cases, this ruling highlights what you've been missing.

First, as for plaintiff's alleged misconduct: it involved allegedly forging the Fire Chief's signature to enroll in a training course. This issues was first raised in a disciplinary proceeding before the NYS Industrial Board of Appeals, which said the signature forging allegation was pretextual. Crown, of course, wants that finding to apply to his federal case. We call that collateral estoppel, in which a factual determination reached in one proceeding will apply to a later proceeding. Collateral estoppel is tricky, however. The Court of Appeals (Lohier, Raggi and Chin) says it cannot apply here -- and Crown cannot rely on the IBA's favorable finding -- because the fire department was not in privity with the Department of Labor, which handled the proceeding in the IBA. In other words, the fire department had no control over that proceeding and were not represented by anyone during it. The department therefore cannot be bound by the IBA's finding.

Second, we have a qualified immunity issue. This immunity allows defendants to avoid litigation if they did not violate clearly established law in acting against the plaintiff. The Second Circuit rules in plaintiff's favor on this issue. The law has long been clearly established that firefighters have the First Amendment right to criticize a fire department's deficiencies in training, morale and discipline. Firefighters also have a clearly established right to criticize limitations on access to public records. That's what plaintiff did here, so the department had to leave him alone over this.

While the department says it terminated Crown because of performance deficiencies, including allegedly forging a signature and missing a required meeting, the Court of Appeals says these are disputed factual issues that cannot be resolved on summary judgment. Crown says he was actually authorized to sign the Chief's name, and Crown tried to reschedule the meeting, raising "at least a question as to whether defendants in good faith believed his absence to indicate insubordination."

This blog entry discusses the reasoning leading up to the qualified immunity holding. If you handle Section 1983 cases, qualified immunity is a part of your life. It says that even if the police or some other governmental actor violated the plaintiff's rights, the defendant is immune from suit in certain circumstances. Qualified immunity provides a cushion for governmental officials to avoid suit depending on the circumstances.

The Supreme Court has always framed the qualified immunity inquiry this way: officers are immune from suit unless they violated the plaintiff's constitutional rights and those rights were clearly established at the time of the violation. We know when rights are clearly established by looking at the case law in place at the time of the incident. You don't need a case on "all fours," but preexisting case law must be close enough that the government defendants were on notice that they were violating the plaintiff's rights. Despite the two-step test used by the Supreme Court (a process that continues to this day in the several qualified immunity rulings issued by the Court each year), the Second Circuit has often applied a third step, asking if the defendant's actions were objectively reasonable. This means that even if the officers violated a clearly established right, if they acted in an objectively reasonable manner, or in objective good faith, they cannot be sued.

In 2007, Judge Sotomayor (when she was still sitting on the Second Circuit) noted in a concurring opinion that the third step is not appropriate because the Supreme Court has never adopted that approach. That case was Walcyk v. Rio, 496 F.3d 139 (2d Cir. 1997). While other judges on the Court of Appeals had also pointed out this anomaly, the Second Circuit still applied a third step from time to time, depending on the appellate panel.

I represented the plaintiff in Barboza. On appeal I argued that there is no third step as per Judge Sotomayor's concurrence in Walcyk and Supreme Court precedent. We also had an amicus brief that advanced the same argument. This position impacted Barboza because the district court said that while the officers violated clearly established law in arresting Barboza for his vulgarities, they were still entitled to qualified immunity under the third step because it was objectively reasonable for the officers, in part, to rely on the advice of the assistant district attorney, who told them to arrest Barboza.

In affirming the judgment in favor of the police officers, the Second Circuit (Chin, Raggi and Lohier) says the district court nonetheless got the qualified immunity inquiry wrong: there is no third step. The Court says its precedent has already rejected the third step, in Zaleski v. City of Hartford, 723 F.3d 382 (2d Cir. 2013), and Okin v. Village of Cornwall, 577 F.3d 415 (2d Cir. 2009). In my view, it was not that clear that the Second Circuit had squarely rejected the third step in those cases, as the Court of Appeals had gone back and forth on that issue over the years. That issue is settled now. There is no "objective reasonabeless" third step under the qualified immunity equation.

That does not make it easier to sue the police for constitutional violations. The panel in Barboza repeatedly notes that, even under the clearly established element of qualified immunity, the plaintiff must show the law was clearly established "in certain respects," depending on the facts of the case. So the Court of Appeals makes this step a fact-specific inquiry. Language in the ruling further emphasizes that qualified immunity is a "forgiving" test that allows police officers "breathing room to make reasonable, even if sometimes mistaken judgments, without fear of disabling liability." This means that only the "plainly incompetent" government defendants will lose in court. The Second Circuit cites Supreme Court authority for most of this reasoning. In the end, reasoning like this makes it easier for government defendants to avoid liability, even if the plaintiff can show that his rights were violated.

Monday, January 23, 2017

It all started when plaintiff was pulled over for speeding. He plead guilty by mail. When he sent in his payment form, he wrote an obscenity on the form before mailing it in to the Town Court in Sullivan County. The police arrested him for aggravated harassment, which prohibits threats. He sued the police. The district court granted the police qualified immunity, and the Court of Appeals affirms.

The case is Barboza v. D'Agata, a summary order decided on January 18. I argued the appeal. Losing is a major downer, but I will try to be be neutral here, Plaintiff wrote "Fuck your shitty town bitches" on the form. When the Town judge found out about it, he gave it to the assistant district attorney, who decided the language violated the aggravated harassment statute and told Police Officer D'Agata to arrest plaintiff.

Plaintiff sued the police and the assistant district attorney. On the summary judgment motion, the district court ruled there was no real threat here and the arrest violated the First Amendment. The trial court further held the assistant district attorney was not entitled to prosecutorial immunity. But the district court entered judgment for the officers on qualified immunity grounds. As civil rights lawyers know, qualified immunity allows police officers to avoid litigation if they did not violate a clearly-established constitutional right. This means that, even if 20/20 hindsight tells us the plaintiff's rights were in fact violated, the officers can win if the case law was not clear at the time that his rights were violated. Here, while the district court said the arrest violated clearly established law, it granted them qualified immunity, ruling they acted in an objectively reasonably manner because they relied on the district attorney's directive and the Town Justice's implied endorsement of the arrest in not dismissing the charge when plaintiff appeared before him.

The Court of Appeals (Raggi, Chin and Lohier) affirms as to police officer liability. The Court disagreed with the district court's view that the law was clearly-established. While a New York Court of Appeals ruling, People v. Mangano (2003) said the defendant did not violate the aggravated harassment law after repeatedly calling a parking violations bureau with threats and vulgarities, Mangano is not on "all fours" with this case because Mangano only distinguished a prior State Court of Appeals ruling that said liability may arise from the defendant's "harassing conduct, not from any expression entitled to constitutional protection." In Mangano the defendant got away with his invective because he called a complaint hotline at the parking violations bureau.

As the Second Circuit sees it, there is no case close enough to Barboza's to place the police on notice that they were violating his First Amendment rights, even if Supreme Court authority says the "true threats" threshold is quite high in arresting someone for obnoxious behavior. Instead, the Second Circuit holds, "at the time at issue, New York's Court of Appeals had recognized both permissible and impermissible applications of the [aggravated harassment] statute. Thus, existing precedent did not yet place the question of Section 240.30(1)'s constitutional application to the circumstances of this case beyond debate." In addition, the Second Circuit says, "an assistant district attorney, after discussing the matter with the district attorney, advised the officers that Barboza's communication was threatening and warranted a Section 240.30(1) charge (and, indeed, directed its filing). That conclusion is reinforced by the actions of two judges, one of whom, after reviewing the charging information, advised Barboza that he was about to be arrested, and the second of whom, upon similar review, arraigned and detained Barboza on the charge."

Friday, January 20, 2017

Public employees who sue their employers for retaliation arising from their free speech face a number of hurdles. The first hurdle is the plaintiff has to show he spoke as a citizen on a matter of public concern. Assuming the police can establish that, he must show his termination/demotion/whatever was caused by someone's negative reaction to the speech. This case is a causation case.

The case is Birch v. City of New York, a summary order decided on January 12. The public concern component of a First Amendment retaliation case is typically the death knell, ever since the Supreme Court said in the Garcetti case (2006) that it's not free speech if the utterances are part of the plaintiff's normal job responsibilities. But in this case, the plaintiff apparently did engage in free speech in complaining about police department quota policies. The issue here is whether he can prove the retaliatory acts were caused by his free speech. He cannot prove that.

Without direct evidence that the speech caused the adverse action, the plaintiff has to rely on circumstantial evidence. One way to do that is by showing the adverse action closely followed the free speech. Revenge may be a dish best served cold, but the courts do not see it that way. In this case, the gap is too long. Plaintiff spoke out in December 2011 and February 2014. The retaliation took place 17 months later. That will not cut it. Three or four months might do it, but not 17 months. Case dismissed.

Thursday, January 19, 2017

The plaintiff in this case is a lawyer who sued the police for malicious prosecution, selective enforcement and excessive force. He loses each of those claims in the Court of Appeals.

The case is Tyk v. Surat, a summary order decided on January 12. Tyk was arrested for reckless endangerment, harassment and disorderly conduct. He was acquitted, prompting this lawsuit. This is how the district court summarizes the facts:

Plaintiff admits that he illegally parked his car outside of Maimonides Medical Center (“MMC”) in violation of a New York City ordinance. He returned to find that his car was gone. MMC security personnel informed plaintiff that his car had been towed. An argument ensued and Alexander D’Atri, director of security at MMC, directed MMC security officers to handcuff plaintiff.

New York City Police Officer Eric Surat responded to the scene and spoke with MMC security personnel Fernandez and Castillo as well as D’Atri. Officer Surat observed a red marking on D’Atri’s nose. D’Atri and the security officers reported to Officer Surat that plaintiff became upset and violent after learning that his car had been towed, and that plaintiff struck D’Atri in the face with his hand while holding his cellphone. Officer Surat arrested plaintiff. Plaintiff alleges that Officer Surat handcuffed him too tightly. Plaintiff was issued a desk appearance ticket.

A couple of months later, Assistant District Attorney Roger Yu interviewed D’Atri regarding the altercation at MMC. Based on that interview and the statements made therein by D’Atri, ADA Yu prepared a criminal complaint, which D’Atri signed. D’Atri alleged that plaintiff struck D’Atri on the bridge of his nose with his cellphone, and that D’Atri was given medical treatment for an abrasion.

The District Attorney charged plaintiff with multiple crimes including assault in the third degree, reckless endangerment in the second degree, menacing, trespass, and harassment in the second degree. The case went to trial, and plaintiff was acquitted.

Acquittals mean the prosecution cannot prove your guilt beyond a reasonable doubt, but it does not mean you can bring a lawsuit. No reasonable doubt does not mean no probable cause.The police had probable cause to arrest Tyk because he interviewed three hospital workers about the incident and saw that one of them had red marks on the nose. That gives you probable cause to arrest for reckless endangerment, harassment and disorderly conduct. The police also learned that Tyk was told to leave the hospital property, which supports the trespass arrest. While Tyk says the police could have done a better job in the investigation -- which would have proven Tyk's innocence -- the police are not required to conduct a full investigation before arresting someone.

Wednesday, January 18, 2017

Qualified immunity protects governmental employees when someone sues them for civil rights violations. Johnny Citizen does not enjoy this immunity. But police officers do. The Supreme Court routinely takes up these cases. Lately, the Court has been ruling in favor of the police in excessive force cases.

The case is White v. Pauly, decided by the Supreme Court on January 9. Under the qualified immunity test, we ask two questions: (1) did the police officer violate the plaintiff's rights; and (2) were those rights clearly-established at the time of the violation. This standard allows the defendant to win unless a court somewhere has found that a case with similar facts violated the Constitution. Whether a case was directly on point is in the eye of the beholder. In this case, the Supreme Court beholds that the defendant police officer did not violate any clearly-established rights when he showed up late to a dispute and shot and killed an armed occupant in a house without giving a warning.

After two people reported Pauly's crazy driving, they followed him as he drove away. He then drove to his house, which he shared with his brother. Officer Truesdale, meanwhile, responded to the 911 call and determined with two other officers there was no probable cause to arrest Pauly. These officers then went to Pauley's house to ask him questions. When Pauly and his brother realized the police were outside, they armed themselves, unaware it was the police outside. One of the Pauly brothers told the police they had guns. Meanwhile, Officer White came upon the scene and arrived when he heard the brother shout out they had guns. Daniel Pauly fired his gun while screaming loudly. Samuel Pauly opened the window and pointed his gun at Officer White. One officer shot at Samuel but missed. A few seconds later, White shot and killed Samuel.

While the Court of Appeals said a reasonable police officer would know that their conduct would cause Samuel to defend his home and that White should have known a warning was necessary before pulling the trigger. The Supreme Court disagrees and rules in White's favor. There is no precedent quite like this one, the Court says, which means the law was not clearly-established. This case is unique because of White's late arrival on the scene during an ongoing police action. "No settled Fourth Amendment principle requires that officer to second-guess the earlier steps already taken by his or his fellow officers in instances like the one White confronted here."

Tuesday, January 17, 2017

Habeas corpus petitions are routinely denied by the federal courts because Congress in 1996 told them to defer to the constitutional judgments reached by the state appellate courts. This means the New York Appellate Divisions and the State Court of Appeals can get it wrong, but unless they get it unreasonably wrong, the conviction stands and the defendant remains in jail.

The case is Moss v. Colvin, issued on January 9. There are many ways to upset a criminal conviction. One way is to argue that that the trial court closed the courtroom during the criminal trial without a good reason. That's what Moss argues here. He was arrested for selling drugs. An undercover officer nailed him. Of course, undercover had to testify in court against Moss. But since undercover witnesses cannot show their faces, trial judges sometimes close the courtroom during their testimony. Since the State Court of Appeals upheld the conviction, the Second Circuit is his last resort.

Here is the test for determining whether the criminal court violated the Constitution in closing the courtroom:

(1) “the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced” if the courtroom is not closed, (2) “the closure must be no broader than necessary to protect that interest,” (3) “the trial court must consider reasonable alternatives to closing the proceeding,” and (4) the trial court “must make findings adequate to support the closure.”

The Second Circuit (Katzmann, Carney and Wesley) says the state courts got it right in finding the government had an excellent reason for closing the courtroom. The undercover officer continued to work in the area of the arrest (so that people attending the trial would know who he was), he had received numerous threats in the past, and he had encountered suspects in the courthouse. He also took steps to protect his identity when he entered courthouses. In finding the courtroom closure did not violate the Sixth Amendment right to a public trial, the New York Court of Appeals did not unreasonably apply the Constitution,

Tuesday, January 3, 2017

The Privileges and Immunities Clause of the U.S. Constitution does not get much attention these days, but you can challenge state laws and regulations under that Clause if you are an out-of-stater and the state treats in-state people more favorably than you. That a simplified version of the P&I Clause but the point is that it ensures "the citizens of the United States [are] one people, by placing the citizens of each State upon the same footing with citizens of other States," even if people in those other states elect someone that we despise to the White House.

The case is Clement v. Durban, an Appellate Division ruling from December 21. Plaintiff is a personal injury victim. Her case was dismissed in State Supreme Court, so she wanted to take up an appeal. Since plaintiff moved to the State of Georgia while the lawsuit was pending, state law requires her to post a bond in case she loses the appeal and has to pay the defendant's costs. Is this legal? What about the P&I Clause, you know, the one that says we're on the same page, even if we live somewhere else?

The out-of-state bond requirement is legal. The Second Department summarizes how the P&I Clause works, but it cautions that strict equality is not required.

"This does not mean . . . that state citizenship or residency may never be used by a State to distinguish among persons.'" " Nor must a State always apply all its laws or all its services equally to anyone, resident or nonresident, who may request it so to do.'" "Rather, . . . the Privileges and Immunities Clause
protects only those privileges and immunities that are fundamental.'"

New York imposes this out-of-state bond requirement to ensure that "if he loses the case he will not return home and leave defendant with a costs judgment that can be enforced only in plaintiff's home state." The rule protects the defendant "from frivolous suits and is assured that, if successful, he will be able to recover costs from the plaintiff."

While out-of-staters have a fundamental right under the P&I Clause to sue in New York, the Supreme Court said years ago that the Clause is satisfied "if the nonresident is given access to the courts of the state upon terms which in themselves are reasonable and adequate for the enforcing of any rights he may have, even though they may not be technically and precisely the same in extent as those accorded to resident citizens." This rule of law allows New York to require the Georgia plaintiff to post a bond to ensure the prevailing defendant will recover any costs expended on appeal.

The challenged statutory provisions do not deprive noncitizens of New York of reasonable and adequate access to New York courts. The requirement that a nonresident plaintiff who has not been granted permission to proceed as a poor person post the modest sum of $500 as security for costs is reasonable to deter frivolous or harassing lawsuits and to prevent a defendant from having to resort to a foreign jurisdiction to enforce a costs judgment. while the U.S. Supreme Court has never considered a direct challenge to a state statute requiring nonresident plaintiffs to post security for costs, it has cited such a requirement as an example of one that would not run afoul of the Privileges and Immunities Clause.